The Supreme Court is taking its summer breather from an important Term. There is no impending nomination to dissect. So I thought I’d take an opportunity to survey the current world of constitutional amendments, which after all are the procedural postscripts to many rulings of the Court. Given the virtually universal acceptance that the Supreme Court is the final arbiter of constitutional interpretation, the constitutionally legitimate route to "overturning" an interpretation by the Court is amending the Constitution itself.

This is all well and good as a matter for law school exams. However, relatively few amendments have ever been ratified and even fewer in any sense accomplished a reversal of Supreme Court precedent (as opposed to setting ground rules for a new situation). As a result, some scholars downplay the significance of constitutional amendments in accomplishing legal change.1 This largely results from the demanding nature of the process for amending the Constitution. Article V of the Constitution sets forth two avenues for an amendment. A two-thirds vote of both houses of Congress may propose an amendment or the legislatures of two-thirds of the states may apply to the Congress to call a constitutional convention. In either case, a resulting amendment is circulated for consideration of ratification by three-fourths of the state legislatures or by constitutional conventions convened in three-fourths of the states. The amendment process is rigorous to ensure that constitutional amendments are the product of careful deliberation and not political passions.

Twenty-seven amendments have been added since 1789. The Twenty-Sixth Amendment, securing the right of eighteen year olds to vote was proposed by Congress on March 23, 1971. Ratification proceeded quickly, with the necessary thirty-eighth state (North Carolina) acting on July 1, 1971. The Twenty-Seventh Amendment proceeded at a much more glacial pace. (The amendment states, "No law varying the compensation for the services of the Senators and Representatives shall take effect, until an election of Representatives shall have intervened.") Still referred to in many reproductions of the Constitution as a "purported amendment," it was proposed by Congress on September 25, 1789 (only days before the amendments we now know as the Bill of Rights). The proposal failed to achieve ratification as of 1791, having garnered the support of only six states. Two hundred years later, ratification was attained upon Michigan’s assent on May 7, 1992.2 While that proposed amendment carried no expiration date, more recent Congresses have imposed time limits for ratification of amendments (typically seven years).

Perhaps the most well-known unratified amendment of recent times is the Equal Rights Amendment ("the ERA"). It proposed to add to the Constitution the substantive guarantee that "equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex." The ERA passed the U.S. Senate and then the House of Representatives and was dispatched for ratification by the states on March 22, 1972. Following the modern practice, Congress inserted a seven-year deadline for ratification. The ERA obtained twenty-two of the required thirty-eight state ratifications within the first year, but only twelve in the ensuing four years.

Responding to public pressure, Congress extended the deadline for ratification until June 30, 1982. That day arrived and the ERA still lacked the necessary thirty-eight state approvals. The ERA was reintroduced in Congress again the following month, as well as in every session of Congress to the present time, but has not again achieved the passage in Congress by the margin sufficient to begin another cycle of state consideration. The current version was introduced in the House and Senate on March 22, 2001, by Representative Carolyn Maloney and Senator Edward Kennedy, respectively, both joined by many co-sponsors.

In the new 107th Congress, many other proposals for constitutional amendments have been introduced. None has gathered any significant legislative momentum and many, if not most, were introduced for symbolic value. Nevertheless, the list is an interesting mix of proposals to overturn Supreme Court precedent, to insulate an initiative from potential judicial invalidation, or to make an emphatic statement of policy.

Not surprisingly, there are proposed amendments to correct perceived flaws in the presidential election process. Representative Clyburn offered a proposed amendment that would allocate Electoral College representation in each state on the basis of popular vote results in each congressional district, with two electors also going to the candidate who won the statewide popular vote (H.J. Res. 1). Another approach was put forward by Representatives Gene Green and William Delahunt, whose amendments would abolish the Electoral College in its entirety and provide for the direct popular election of the president and vice president (H.J. Res. 3, 5). Under amendments drafted by Representatives Jose Serrano and Steny Hoyer, a president once elected under those or other schemes could serve an unlimited number of terms; the Twenty-Second Amendment would be repealed by H.J. Res. 4 and 39.

Other amendments seek to erase the constitutional limitations on campaign finance reform stemming from the Court’s application of the First Amendment in Buckley v. Valeo and other cases (H.J. Res. 4, 14, S.J. Res. 4). Several current proposals continue a series of efforts over the years to add to the Constitution a requirement that the federal government’s budgets be balanced (H.J. Res. 9; S.J. Res. 2). Senator Shelby’s twist also would prevent federal expenditures from exceeding 20 percent of gross national product (S.J. Res. 3). Another would place various federal disability and retirement trust funds outside the budget of the United States (H.J. Res. 26). Representative Ron Paul’s amendment would abolish federal personal income, estate, and gift taxes, and bar the United States from engaging in any business activities in competition with its citizens (H.J. Res. 45).

One of the very few amendment proposals to make it beyond committee consideration in this Congress is Representative Pete Sessions’ proposal that would have required two-thirds margins in both houses to pass a bill that would yield more than a de minimis tax increase (with a wartime and national security waiver provision). This amendment was defeated by a 232–189 margin (H.J. Res. 41). A companion Senate version offered by Senator Sessions (no relation) remains in committee (S.J. Res. 11). Also lodged in committee is a cousin of this amendment, which would require a similar margin for any legislation that would result in a budget deficit for any fiscal year (H.J. Res. 53).

Even more powerful fiscal discipline likely would be the result of the ratification of H.J. Res. 56. This proposal, penned by Representative Doug Ose, would require members of Congress and the president to forfeit their pay if they were tardy in any year in passing the necessary appropriations bills.

The Court’s abortion jurisprudence in Roe v. Wade and beyond would be dramatically reversed by Representative Emerson’s H.J. Res. 10. That amendment would provide: "With respect to the right to life, the word ‘person’ as used in this article and in the fifth and fourteenth articles of amendment applies to all human beings irrespective of age, health, function, or condition of dependency, including their unborn offspring at every state of their biological development." (In Roe, Justice Blackmun’s opinion rejected such a contention.) Representative Emerson took on Texas v. Johnson in another proposal to amend the Constitution to give Congress and the states the power to prohibit and punish flag desecration (H.J. Res. 11; S.J. Res. 7). And in H.J. Res. 12, Representative Emerson seeks to clarify and solidify the status of school prayer in the face of recent high court decisions such as Santa Fe Independent School District v. Doe: "Nothing in this Constitution shall be construed to prohibit individual or group prayer in public schools or other public institutions. No person shall be required by the United States or by any State to participate in prayer. Neither the United States nor any State shall prescribe the content of any such prayer."

Another proposal would fix English as the official language of the United States, a point on which the Constitution has been silent (H.J. Res. 14). Representative Charles Rangel would vest a new constitutional entitlement to a home, "which right shall not be denied or abridged by the United States or any State." (H.J. Res. 21.) Immediate definitional and implementation difficulties come to mind. Similarly, Representative Jesse Jackson, Jr., would create expansive entitlements "to work, to free choice of employment, to just and favorable conditions of work, and to protection against unemployment," "to equal pay for equal work," "to just and favorable remuneration ensuring for themselves and their family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection," and "to form and join trade unions for the protection of their interests." (H.J. Res. 26.) Representative Jackson also would take the step that the Court declined to take in the San Antonio Independent School District v. Rodriguez case by recognizing a right of all citizens to a public education of equal high quality (H.J. Res. 31). Other Jackson amendments would bar actions by the federal or state governments to abridge reproductive rights (H.J. Res. 32), guarantee a right to a clean, safe, and sustainable environment (H.R. Res. 33), and ensure that all federal income taxes be based progressively on income (H.J. Res. 34).

The inspiration for one of Representative Barney Frank’s amendments is obvious. He would modify the Constitution to prohibit the granting of presidential reprieves and pardons between October 1 of a presidential election year and the following Inauguration Day (H.J. Res. 19). The particular political impetus for a second Frank amendment eludes me; he would have the Constitution make eligible for the Office of President a person who has been a United States citizen for twenty years (H.J. Res. 47). Representatives Phil English and Rob Andrews seek to overturn Clinton v. City of New York by creating an explicit constitutional recognition of a line item veto for appropriation bills (H.J. Res. 23, 24).

Finally, the April 24, 2001 decision by the Court in Atwater v. Lago Vista, allowing persons to be arrested for a seat belt violation punishable only by a fine presumably inspired Representative Carson’s May 9 proposal to amend the Constitution to bar incarceration for minor traffic offenses (H.J. Res. 46).

Readers of this column should not sound any alarms that any of these proposals will become the Twenty-Eighth Amendment any time soon. Rather, at least for me, they inspire thoughts of "what if," pose great theoretical puzzles of drafting and implementation, and, most substantially, validate the wisdom of Article V in forging an amendment process that requires great time, effort, and sustained and diverse consensus to bring about change of such an enduring and immutable nature.

1. See, e.g., David A. Strauss, The Irrelevance of Constitutional Amendments, 114 Harv. L. Rev. 1457 (2001).

2. The obscurity of the Twenty-Seventh Amendment would be fixed by proposed legislation that would require our currency to be redesigned to incorporate on the reverse side the preamble to the Constitution, a list describing the Articles of the Constitution, and a list describing the amendments. H.R. 1021.